Dauphin v The Queen
[2002] WASCA 104
•7 MAY 2002
DAUPHIN -v- THE QUEEN [2002] WASCA 104
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 104 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:54/2002 | 3 APRIL 2002 | |
| Coram: | ANDERSON J STEYTLER J McKECHNIE J | 7/05/02 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal refused | ||
| D | |||
| PDF Version |
| Parties: | DALE ALAN DAUPHIN THE QUEEN |
Catchwords: | Criminal law and procedure Sentencing Sexual penetration of applicant's de facto child 8 years' imprisonment imposed Whether sentence manifestly excessive Whether sufficient weight given to applicant's favourable antecedents and other allegedly mitigating circumstances Turns on own facts |
Legislation: | Criminal Code (WA), s 320(2), s 329(2) |
Case References: | Boudville v The Queen [2001] WASCA 133 Chinnery v The Queen [2000] WASCA 295 D v The Queen [2000] WASCA 137 De Luce v The Queen, unreported; CCA SCt WA; Library No 960375; 19 July 1996 Johnson v The Queen, unreported; CCA SCt of WA; Library No 920112; 5 March 1992 Johnston v The Queen, unreported; CCA SCt of WA; Library No 960153; 22 March 1996 King v The Queen [2001] WASCA 103 Leslie v The Queen, unreported; CCA SCt of WA; Library No 940080; 21 February 1994 Lowndes v The Queen (1999) 195 CLR 665 Morley v The Queen [2001] WASCA 49 Murray v The Queen, unreported, CCA SCt of WA, Library No 8911; 6 June 1991 Postiglione v The Queen (1997) 189 CLR 295 R v ‘EPR’ [2001] WASCA 214 R v Boyd [1984] WAR 236 R v Chi Sun Tsui (1985) 1 NSWLR 308 R v Podirsky (1989) 43 A Crim R 404 R v Shrestha (1991) 173 CLR 48 R v Simard [2001] QCA 531 R v Tait (1979) 46 FLR 386 R v Wozencroft, unreported; CCA SCt of WA; Library No 6606; 25 February 1987 Spence v The Queen, unreported; CCA SCt of WA; Library No 920697; 22 December 1992 Terranova v The Queen, unreported; CCA SCt of WA; Library No 930576; 26 October 1993 Trescuri v The Queen [1999] WASCA 172 Woods v The Queen (1994) 14 WAR 341 Bell v The Queen [2001] WASCA 40 Blight v The Queen [2001] WASCA 122 R v Marchesano (1992) 61 A Crim R 372 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : DAUPHIN -v- THE QUEEN [2002] WASCA 104 CORAM : ANDERSON J
- STEYTLER J
McKECHNIE J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Sentencing - Sexual penetration of applicant's de facto child - 8 years' imprisonment imposed - Whether sentence manifestly excessive - Whether sufficient weight given to applicant's favourable antecedents and other allegedly mitigating circumstances - Turns on own facts
Legislation:
Criminal Code (WA), s 320(2), s 329(2)
Result:
Application for leave to appeal refused
(Page 2)
Category: D
Representation:
Counsel:
Applicant : Ms K J Farley
Respondent : Mr R E Cock QC
Solicitors:
Applicant : Unrepresented Criminal Appellants' Scheme
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Boudville v The Queen [2001] WASCA 133
Chinnery v The Queen [2000] WASCA 295
D v The Queen [2000] WASCA 137
De Luce v The Queen, unreported; CCA SCt WA; Library No 960375; 19 July 1996
Johnson v The Queen, unreported; CCA SCt of WA; Library No 920112; 5 March 1992
Johnston v The Queen, unreported; CCA SCt of WA; Library No 960153; 22 March 1996
King v The Queen [2001] WASCA 103
Leslie v The Queen, unreported; CCA SCt of WA; Library No 940080; 21 February 1994
Lowndes v The Queen (1999) 195 CLR 665
Morley v The Queen [2001] WASCA 49
Murray v The Queen, unreported, CCA SCt of WA, Library No 8911; 6 June 1991
Postiglione v The Queen (1997) 189 CLR 295
R v ‘EPR’ [2001] WASCA 214
R v Boyd [1984] WAR 236
R v Chi Sun Tsui (1985) 1 NSWLR 308
R v Podirsky (1989) 43 A Crim R 404
R v Shrestha (1991) 173 CLR 48
R v Simard [2001] QCA 531
R v Tait (1979) 46 FLR 386
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R v Wozencroft, unreported; CCA SCt of WA; Library No 6606; 25 February 1987
Spence v The Queen, unreported; CCA SCt of WA; Library No 920697; 22 December 1992
Terranova v The Queen, unreported; CCA SCt of WA; Library No 930576; 26 October 1993
Trescuri v The Queen [1999] WASCA 172
Woods v The Queen (1994) 14 WAR 341
Case(s) also cited:
Bell v The Queen [2001] WASCA 40
Blight v The Queen [2001] WASCA 122
R v Marchesano (1992) 61 A Crim R 372
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1 ANDERSON J: I have had the advantage of reading in draft the reasons for judgment of Steytler J. I agree with those reasons and with the orders proposed. There is nothing I can usefully add.
2 STEYTLER J: This is an application for leave to appeal against sentence.
3 On 3 November 2000 the applicant was convicted, after trial by jury, of two counts of sexually penetrating his de facto child contrary to s 329(2) of the Criminal Code(WA). On 9 November 2000 he was sentenced to a period of 8 years’ imprisonment on each count, to be served concurrently. He was made eligible for parole.
4 There is only one ground which the applicant seeks to advance by way of appeal. It is that the sentencing Judge erred in the exercise of his discretion by imposing a sentence that was, in all the circumstances, manifestly excessive.
5 The offences the subject of the appeal were committed on 6 January 1999. The applicant was then aged 39. He had been living in a de facto relationship with the complainant’s mother for a period of about six months. On that day, the complainant’s mother left the complainant in the care of the applicant for a period of about four hours. During this time, the applicant took the complainant to his bedroom. He there penetrated the complainant’s vagina and her mouth with his penis. The complainant was then six years old.
6 There are three particulars advanced in support of the applicant’s contention that the sentence imposed on him was manifestly excessive. Before dealing with each of these, it is worth repeating the well-known principles as regards an appellate Court’s function in an appeal against a discretionary judgment. They were expressed in R v Tait (1979) 46 FLR 386 by Brennan, Deane and Gallop JJ (at 388) as follows:
"An appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is insufficient or excessive. It interferes only if it be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error."
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7 It is not sufficient that an appellate Court may have taken a different approach or imposed a different sentence. It must be demonstrated that the sentencing Judge erred in the exercise of his or her discretion: Lowndes v The Queen (1999) 195 CLR 665.
8 Returning to the particulars advanced in support of the appeal, the applicant first argued that the sentencing Judge failed to give sufficient consideration to his favourable antecedents. In particular, counsel for the applicant contended that insufficient weight was given to the fact that the applicant had no prior convictions, had previously been of good character, had an employment record indicating a good work ethos and had been able to sustain long-term relationships. The Court’s attention was also drawn to the fact that there were good prospects for the applicant’s rehabilitation and of him reconciling with his de facto partner.
9 As to the question of favourable antecedents, the sentencing Judge, in the course of his sentencing remarks, expressly took account of the fact that the applicant had previously been of good character (AB 23 – 24). However, as counsel for the applicant acknowledged, this could not be regarded as a weighty mitigatory factor in a case of sexual abuse by a mature adult of a young child entrusted to his care. Courts in this jurisdiction have consistently held that, where a case involves sexual assault by an adult against a young child within the family environment, the paramount sentencing consideration will be the punishment of the offender and "the imposition of a sentence having appropriate qualities of general and particular deterrence in the attempt to mark the seriousness with which the commission of the offence is viewed by the Court and in an endeavour to secure a degree of protection for children from this and like minded offenders": Chinnery v The Queen [2000] WASCA 295 per Murray J at [28]. As Anderson J said in Trescuri v The Queen [1999] WASCA 171 at [21]:
"Sexual assaults by an adult upon young children within the family environment involving the taking advantage of a position of trust and authority is very serious and the law demands the protection of young children from it. The dominant sentencing considerations are punishment and general and personal deterrence, as well as retribution for the victims who are invariably grossly traumatised."
10 (See, also, R v Wozencroft, unreported; CCA SCt of WA; Library No 6606; 25 February 1987 per Burt CJ and Johnston v The Queen,
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- unreported; CCA SCt of WA; Library No 960153; 22 March 1996 per Anderson J).
11 In his sentencing remarks, the sentencing Judge, after explaining the nature of the offences, said the following:
"I turn to your antecedents. You’re presently 39 years of age. You were born in New Zealand. You had a 9 and a half year relationship in New Zealand and came to Australia in 1994, initially to Kalgoorlie and then to Perth. You have been a truck driver for most of your adult life and according to your counsel that has required constant long hours of work. It is said by your counsel that the effect of these charges upon you has been dramatic. You lost your residence and you have had this matter hanging over your head for quite a long time…
I view your breach of trust, both to the complainant’s mother and to the complainant herself, as very serious. The conduct of your offending when looked at in the light of the fact that the complainant was only just 6 years of age make these two offences very serious offences … You pleaded not guilty to these matters and although that does not increase the penalty, it does indicate to me that there has not been any remorse on your part.
It is clear that in relation to sentencing principles in relation to these matters there must be both a general and a personal deterrence. I was told by your counsel that you accepted the inevitability of imprisonment in relation to these offences and it is not suggested that any term of imprisonment imposed should be other than one served immediately.
In relation to the tariff for these matters, it does vary but I take the following factors into account: you have previously been of good character. Both the offences occurred on the one occasion; that is, when the complainant’s mother was out of the house for some 3 to 4 hours. They were, however, as I have said, serious breaches of trust and constitute serious offences in relation to sentencing for sexual offences."
12 While these sentencing remarks are relatively brief, and do not specifically refer to all the mitigating factors which were mentioned by counsel for the applicant, it is clear enough that the sentencing Judge gave proper consideration to the applicant’s antecedents and that the sentence
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- ultimately imposed upon him reflects this. There are many factors which go into the exercise of discretion in relation to a particular sentence. It would be unrealistic to expect a sentencing Judge to mention every conceivable matter which has or might have influenced him or her: Leslie v The Queen, unreported; CCA SCt of WA; Library No 940080; 21 February 1994 at 8.
13 As to the questions of rehabilitation and reconciliation, in Johnson v The Queen, unreported; CCA SCt of WA; Library No 920112; 5 March 1992, Malcolm CJ recognised that, in the context of sexual offences committed within a family, the prospects of rehabilitation of the offender, rehabilitation of the victim and reconciliation and maintenance of the family unit may be relevant mitigatory factors (see also Murray v The Queen, unreported, CCA SCt of WA, Library No 8911; 6 June 1991, per Malcolm CJ, with whom Franklyn and Owen JJ were in agreement). We were also referred, in this respect, to the case of R v Boyd [1984] WAR 236. There, the offender was convicted on his plea of guilty to sexually assaulting his 9-year-old daughter. There was evidence that the child retained her affection for her father and that the wife and children of the marriage, including the victim, desired a resumption of cohabitation with him. The offender was described as hard working, supportive and otherwise a stable influence in the home. After obtaining a pre-sentence report and a report on the family from the Community Welfare Department, the sentencing Judge imposed a sentence of imprisonment for 3 years and fixed a minimum term of 5 months. His Honour referred to the "exceptional circumstances" and the need to consider the welfare of the family. On appeal, it was held that the protection of the family should take precedence over deterrence and that it was appropriate for the Judge to have taken a welfare approach.
14 However, in this case, unlike Boyd, there was no evidence to indicate anything more than that the applicant continues to communicate with his de facto partner and that she supports his appeal. There is no clear evidence of a desire to resume cohabitation, or any evidence of the complainant’s feelings towards the applicant, and no suggestion that the applicant is unlikely to re-offend, particularly in light of the fact that he pleaded not guilty to the offences and has demonstrated no remorse. In any event, factors of the kind mentioned in Johnson and Boyd must be weighed against the serious nature of the offences and the circumstances under which they were committed, as well as the risk of re-offending (see Spence v The Queen, unreported; CCA SCt of WA; Library No 920697; 22 December 1992 and Terranova v TheQueen, unreported; CCA SCt of WA; Library No 930576; 26 October 1993). It must also be borne in
(Page 8)
- mind that, while maintenance of the family unit is a matter to be taken into account, it cannot dominate sentencing considerations in cases of this kind (R v ‘EPR’ [2001] WASCA 214 at [38]). The offences in this case were extremely serious, as was rightly recognised by the sentencing Judge. In my opinion, they justified a total sentence of the kind imposed upon the applicant, even taking into account the prospect that the applicant will resume cohabitation with the complainant's mother.
15 I am consequently not persuaded that the sentencing process miscarried in any of the respects contended for in this first particular.
16 The second particular is that the sentencing Judge failed adequately to consider the fact that the offences were part of a solitary instance of sexual assault and that there was no evidence of a continuing course of conduct. Counsel for the applicant submitted, in this respect, that the lack of ongoing abuse is a mitigating factor because of the reduced likelihood of long-term psychological damage to the complainant as a result of the applicant’s offending.
17 There can be little doubt that repeated sexual offences over a substantial period of time carry an offender’s level of culpability to a high level on the scale and should be distinguished from offences of an isolated or sporadic nature (see Boudville v TheQueen [2001] WASCA 133 per Malcolm CJ at [30]). However, the sentencing Judge did take account of the fact that this was an isolated incident when sentencing the applicant. He said so in the course of his sentencing remarks, quoted above, and again when he came to apply the totality principle. No error has been demonstrated.
18 Before turning to the final particular advanced in support of the appeal, it is necessary to consider two further circumstances which were not canvassed in the applicant’s written submissions, but which were argued by his counsel as being relevant at the hearing of the appeal.
19 Firstly, it was said that the sentencing Judge failed to acknowledge the distinction to be drawn between cases of sexual assault involving a lineal relative on the one hand, and those involving a de facto relative on the other. In particular, it was said that the fact the applicant had only been living with his de facto partner for six months in some way reduced the seriousness of the offence, as the family relationship was still in its formative stage and the complainant may not have yet developed a regard for the applicant as a “natural figure” at the time the offences were committed.
(Page 9)
20 Regardless of the fact that the applicant is not the complainant’s lineal father and had only been residing with the complainant and her mother for a period of six months, the fact remains that the applicant was a mature adult who took advantage of the vulnerability of a six-year-old child, and of her dependence upon him, and grossly abused the responsibility and the trust which had been placed in him to act in her best interests. The sentencing Judge was consequently right in describing the offences as very serious and as constituting a “very serious breach of trust” (AB 23 – 24). I am not persuaded that in a case of this degree of seriousness the sentencing Judge erred in the exercise of his discretion by failing expressly to draw a distinction between sexual penetration of a natural child and sexual penetration of a de facto child.
21 Secondly, counsel for the applicant informed the Court that she had recently been advised that the applicant will be deported to New Zealand at the completion of his sentence. She suggested that this should be taken into account by the Court when considering the appropriate sentence to be imposed, particularly in light of the prospect of reconciliation between the applicant and his de facto partner and the fact that the applicant no longer has any connection to his country of birth.
22 In my opinion, this submission is without merit. In R v Chi Sun Tsui (1985) 1 NSWLR 308 at 311, Street CJ (with whom the other members of the Court were in agreement) said that "the prospect of deportation is not a relevant matter or consideration by a sentencing Judge, in that it is the product of an entirely separate legislative policy area of the regulation of society". Those remarks were cited with apparent approval by Brennan and McHugh JJ in R v Shrestha (1991) 173 CLR 48 at 58. Furthermore, as McPherson JA explained in R v Simard [2001] QCA 531 at [6], taking the prospect of the applicant’s deportation into consideration has the potential to "produce a regime under which visitors or non-permanent residents [are] sentenced more leniently than Australians who [have] committed the same kind of offence. That cannot be a proper result in the administration of justice".
23 Returning to the final particular advanced in support of the appeal, counsel for the applicant contends that the sentencing Judge failed adequately to consider where the offences stood in terms of their degree of criminality. She also contended that, while the offences were serious, they were not at the higher end of the scale of seriousness.
24 The seriousness with which the community regards this kind of offending is reflected in the maximum penalties imposed in the Criminal
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- Code. The maximum penalty under s 320(2) of the Code for the sexual penetration of a child under the age of 16 is 20 years’ imprisonment. It is well established that cases of intra-family sexual assaults on young children will generally attract heavy sentences: Trescuri v The Queen [1999] WASCA 172 at [21]. However, the Court has on many occasions said that it is neither feasible nor desirable to attempt to establish a tariff for crimes of a sexual nature and that each case must be judged on its merits: R v Podirsky (1989) 43 A Crim R 404 at 411. In Leslie v TheQueen unreported; CCA SCt of WA; Library No 6940080; 21 February 1994 at 10, the Court (Franklyn, Wallwork and Owen JJ) put it as follows:
"So often in appeals against sentence, counsel for the applicant will quote previous decisions of this Court, or even dispositions of offences in unrelated matters, to establish a proposition that the sentence under review must be defective. However, there is an almost infinite variety of circumstances which impinge on the gravity of the conduct in sexual offences and of personal factors relevant to the offender. This has made the search for a tariff elusive if, indeed, the nomination of a tariff is desirable in any event. The enormous range of possibilities also militates against the effectiveness of the exercise of comparison with previous decisions. Each case must be judged on its merits. Exhaustive reference to previous authority, other than to establish general principles and to demonstrate a consistency in approach or the identification of a range of options, will rarely be of assistance."
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- difference between the sentence imposed in that case and the one imposed in the present case, intervention by this Court is justified.
26 This proposition highlights the difficulties associated with comparing particular cases in this area. The effect of King is no more than a confirmation by the appellate Court that, in the peculiar circumstances of that particular case, a total sentence of 10 years' imprisonment (bearing in mind the totality principle) was within the range of a sound exercise of the sentencing Judge’s discretion. The Court there made no attempt to lay down any guideline as to the sentence which should be imposed in any other case or cases.
27 We were also referred to numerous other cases in written submissions lodged on behalf of the applicant. As might be expected, the facts and circumstances of those cases are many and varied. They address a wide range of sexual misconduct. A review of that kind adds little to what has already been done by this Court. Nothing of any significance has changed since Anderson J carefully analysed the approach of this Court to cases of intra-family sexual assault by reviewing a large number of such cases in Woods v The Queen (1994) 14 WAR 341. As has since been pointed out by Ipp J in De Luce v The Queen, unreported; CCA SCt WA; Library No 960375; 19 July 1996 and more recently by Miller J in D v The Queen [2000] WASCA 137, it is unnecessary for the Court to continually attempt to repeat the exhaustive exercise undertaken by Anderson J in Woods. Moreover, the guidelines which have been articulated from time to time by this Court are intended only to give a general indication of the range of appropriate sentences in cases of sexual assault. For example, in Podirsky (above), Malcolm CJ suggested that a single act of sexual assault by penile penetration will usually attract a sentence of about 6 years’ imprisonment, but where the complainant is under the age of 16 years, a sentence of about 8 years is commonly imposed. In cases where there has been a series of offences of aggravated sexual assault involving a complainant under 16, there is more room for variation, but sentences within the range of 9 to 11 years are commonly imposed (cfD v The Queen, above, at [11] – [13] per Miller J).
28 Consequently, while reference may be had to the guidelines which have been enunciated by this Court over the years, the fact remains that the proper exercise of the sentencing discretion will involve "a willingness on the part of the Court to properly reflect all relevant matters in the imposition of a sentence proportionate to the criminality involved rather than an endeavour to search out the place occupied by the case within a range of commonly imposed sentences": Chinnery v The Queen [2000]
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WASCA 295 per Murray J at [27]. It must be borne in mind that, while the "elusive tariff" does not absolve a Court of Criminal Appeal from the responsibility of reviewing sentences to eliminate inconsistency as far as is possible, the appellate Court must fully recognise the discretionary character of the sentencing function and must accord to sentencing Judges "a wide measure of latitude": Postiglione v The Queen (1997) 189 CLR 295 per Kirby J at 336 and Morley v The Queen [2001] WASCA 49 at [8].
29 I am not persuaded that the total sentence imposed upon the applicant in this case was so severe as to suggest that the sentencing Judge treated the offences too seriously or that he otherwise failed adequately to consider where they stood in terms of their degree of criminality.
30 It follows that no error in the exercise of the sentencing Judge’s discretion has been demonstrated. I would consequently refuse the application for leave to appeal.
31 McKECHNIE J: For the reasons given by Steytler J, I would dismiss this appeal.
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